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Tga Premier Junior Golf Franchise, LLC v. B P Bevins Golf LLC

October 12, 2012

TGA PREMIER JUNIOR GOLF FRANCHISE, LLC PLAINTIFF,
v.
B P BEVINS GOLF LLC, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Pisano, District Judge.

OPINION

Plaintiff TGA Premier Junior Golf Franchise, LLC ("TGA") brings this action against B P Bevins Golf LLC ("BP") and Brian Bevins d/b/a Tactical Golf ("Bevins," together with BP, "Defendants") seeking an injunction enjoining Defendants from operating a golf instruction business that TGA alleges violates the non-competition covenant contained in the parties' franchise agreement. Plaintiff has moved for preliminary injunctive relief. Defendant Bevins, appearing pro se, has moved to dismiss the matter under Federal Rule of Civil Procedure 12, alleging, inter alia, that the forum selection clause in the franchise agreement requires that the action be filed in a state or federal court in California. For the reasons that follow, Bevins's motion is granted and this matter is dismissed.

I. BACKGROUND

TGA franchises a system relating to the operation of businesses offering proprietary programs and curriculums with respect to golf instruction for children, teenagers and adults. On September 10, 2007, TGA and BP entered into a franchise agreement (the "Franchise Agreement") pursuant to which BP would operate a franchised business. See Franchise Agreement attached as Ex. A to Jacobs Decl. On that same date, Bevins executed a guarantee and personally guaranteed the full performance of BP under the Franchise Agreement. See Guarantee attached as Exhibit E to Franchise Agreement.

After entering into the agreements, Defendants opened and operated a TGA franchised business. Compl. ¶ 15. On or about March 16, 2012, Bevins advised TGA that he did not intend to renew the franchise past the initial term, which was to expire in September 2012. Id. ¶ 21, 23. TGA alleges that prior to the expiration of the term of the Franchise Agreement, Bevins began doing business under the name "Tactical Golf," through which, according to Plaintiff, Bevins is operating a golf instruction business that is the same as or similar to TGA. TGA further alleges that this violates the non-competition provision of the Franchise Agreement, which states as follows:

FRANCHISEE (or, if FRANCHISEE is a corporation, limited liability company, or partnership, all principals of FRANCHISEE) covenants that during the Term of this Agreement, except as otherwise approved in writing by FRANCHISOR, FRANCHISEE (or, if FRANCHISEE is a corporation, limited liability company, or partnership, all principals of FRANCHISEE) shall not, either directly or indirectly, for itself, or through, on behalf of, or in conjunction with any person, or legal entity:

13.1.1 Divert or attempt to divert any present or prospective Franchised Business customer to any competitor, by direct or indirect inducement or otherwise, .

13.1.3 Own, maintain, advise, operate, engage in, be employed by, make loans to, invest in, provide assistance to, or have any interest in (as owner or otherwise) or relationship or association with, any golf instruction business that is the same or similar to the Franchised Business.

Jacobs Decl. Ex. A at 24. The Franchise Agreement further provides that for a period of three years after its expiration, the franchisee shall not "own, maintain, advise, operate, engage in , be employed by, make loans to, or have any interest in or relationship or association with any golf instruction business which offers at school and after school golf programs, golf clinics, camps and tournaments and other related activities . which are similar to the Total Golf Adventures Proprietary Programs and which is, or is intended to be, located at or within a ten (10) mile radius of the Territory."

Id.

TGA filed the instant lawsuit seeking an injunction enjoining Defendants' operation of any golf instruction business that violates the non-competition provisions of the agreement. Bevins seeks to dismiss the suit, citing to the forum selection clause of the Franchise Agreement. The forum selection clause, Section 22.2 of the Franchise Agreement, reads as follows:

The parties agree that any action brought by either party against the other in any court, whether federal or state, shall be brought within the State of California in the county in which FRANCHISOR has its principal place of business at the time the action is initiated, and the parties hereby waive all questions of personal jurisdiction or venue for the purpose of carrying out this provision.

Id. Ex. A ...


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