(quoting Hodes, 858 F.2d at 913). Postdispute, the clause may be
interpreted to estop defendants' claim of inconvenience. See Jumara, 55
F.3d at 880 ("forum selection clause is treated as a manifestation of the
parties preferences as to a convenient forum"); Foster, 933 F.2d at 1219
(party admitted that clause waived argument of inconvenience).
The public factors already discussed are either not significant or
actually weigh against a transfer of this matter. The last public
factor, the public policy of the forum, also fails to aid defendants. As
already noted, the Kubis decision has no operation on these facts, where
the franchisee is not a citizen of New Jersey and the franchise is not
subject to the New Jersey Franchise Practices Act.*fn2 That defendants
raise this policy-based argument is itself ironic, because the entire
thrust of Kubis is that franchise disputes should be adjudicated in New
Jersey. That case does not hold that it is the public policy of New
Jersey that all franchisees everywhere should have the advantage of their
Here, a New Jersey franchisor, presumably to avoid the burden of
litigating against franchisees in a multiplicity of jurisdictions,
provided in its agreements that disputes would be adjudicated here. This
is a valid, commonplace and economically significant contractual term. To
the extent a public policy of this state exists on the point, it must be
that its citizens can enforce such terms and litigate here, without
having this contractual right vitiated by a transfer motion.
The various factors cited by defendants in their argument under
28 U.S.C. § 1404 (a), fail to outweigh the substantial weight this
Court must give to the forum selection clause and to the plaintiffs
choice of its home forum. Therefore, defendants' motion in the
alternative for a transfer will be denied.
For the reasons set forth above, defendants' motion to dismiss the
complaint against them pursuant to Federal Rule of Civil Procedure 12
(b)(2) for lack of personal jurisdiction and pursuant to Rule 12(b)(3)
for and improper venue will be denied. Defendants' motion in the
alternative for an transfer of venue pursuant to 28 U.S.C. § 1404 (a)
will also be denied.
An appropriate Order is attached.
In accordance with the Court's Opinion filed herewith,
It is on this 28th of June, 2000
ORDERED that defendants' motion to dismiss the complaint against them
pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal
jurisdiction and pursuant to Rule 12(b)(3) for and improper venue is
denied; and it is further
ORDERED that defendants' motion in the alternative for an transfer of
venue pursuant to 28 U.S.C. § 1404 (a) is denied.