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SHORE SLURRY SEAL, INC. v. CMI CORP.

May 12, 1997

SHORE SLURRY SEAL, INC., Plaintiff,
v.
CMI CORPORATION, Defendant.



The opinion of the court was delivered by: IRENAS

 IRENAS, District Judge:

 This matter appears before the Court on defendant's motion to dismiss, or in the alternative, to transfer this case to the Western District of Oklahoma. We find that although venue is proper in New Jersey, transfer to Oklahoma is appropriate.

 I. BACKGROUND

 Plaintiff Shore Slurry Seal ("Shore"), a construction contractor, and Defendant CMI Corporation ("CMI"), a construction equipment seller, signed a sales contract under which plaintiff agreed to purchase a pavement profiler from CMI. See Compl. P 7. The purchase price was $ 548,025.00. Plaintiff filed this breach of contract suit on January 7, 1997, claiming that the profiler is defective. The sales agreement contained a forum selection clause, which was printed on the back of each and every page of the contract. *fn1" See Def. Ex. A. The forum selection clause provided:

 
The parties agree that the proper and exclusive forum and venue in all legal actions brought to enforce or construe any of the provisions of the Agreement shall be in the Federal District Court for the Western District of Oklahoma or, if federal jurisdiction is lacking in such legal action, in the District Court of Oklahoma County, Oklahoma. Each of the parties irrevocably waives the right to object, with respect to such suit, action, or proceeding brought in any such court, that such court does not have jurisdiction over such party.

 Def. Br. Ex. A. at 2, P 11. Defendant brings the instant motion to enforce the forum selection clause, requesting either that we dismiss the case or transfer it to Oklahoma.

 II. DISCUSSION

 A. Motion to Dismiss

 Defendant seeks to dismiss the complaint for improper venue pursuant to Fed. R. Civ. P. 12(b)(3). Venue is proper in "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated." 28 U.S.C. § 1391(a)(2). The parties signed the sales agreement in New Jersey. Moreover, defendant shipped the equipment to New Jersey, where it now remains. We find that these events constitute a substantial part of the events giving rise to the breach of contract claim. Therefore, we find that venue is proper in New Jersey. Furthermore, the property that is the subject of the dispute is located in New Jersey. *fn2" Accordingly, defendant's motion to dismiss for improper venue is denied.

 B. Motion to Transfer

 Defendant requests transfer of this case to the Western District of Oklahoma pursuant to 28 U.S.C. § 1404 and 28 U.S.C. § 1406.

 1. 28 U.S.C. § 1406

 Section 1406 allows a district court to transfer a case that was brought in an improper venue. See 28 U.S.C. § 1406(a)("The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or it be in the interest of justice, transfer such case to any district or division in which it could have been brought."). We have found that venue is ...


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