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Selective Way Ins. Co. v. Glasstech, Inc.

United States District Court, D. New Jersey

November 21, 2014

GLASSTECH, INC., et al., Defendants

For Plaintiff: Steven A. Kluxen, ZIRULNIK, SHERLOCK & DEMILLE, Hamilton, N.J.

For Defendant, William C. Mead, Jr., LITCHFIELD CAVO LLP, Cherry Hill, N.J.


HONORABLE JEROME B. SIMANDLE, Chief United States District Judge.


The matter comes before the Court on Defendant Glasstech, Inc.'s (hereinafter, " Defendant") motion to transfer this action to the Northern District of Ohio or, alternatively, to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Item 4.]

Plaintiff Selective Way Insurance Company (hereinafter, " Plaintiff") asserts, as subrogee of J.E. Berkowitz (hereinafter, " Berkowitz"), that Defendant's negligent " troubleshooting" of Berkowitz's glass annealing oven caused an explosion, resulting in the substantial destruction of Berkowitz's property in New Jersey. Defendant, relying upon the provisions of its General Terms and Conditions of Sale (hereinafter, the " General Terms" or the " Terms"), moves to transfer this action to the Northern District of Ohio or, alternatively, to dismiss this action as barred by the eighteen (18) month limitations period prescribed by its General Terms. Plaintiff does not dispute that Defendant performed certain repair services in accordance with a service Quote provided to Berkowitz by Defendant. Nor does Plaintiff challenge that the service Quote expressly stated that Defendant provided such services pursuant to the General Terms. Rather, Plaintiff disputes whether Berkowitz ever received the General Terms appended to Defendant's motion, particularly because Plaintiff's Complaint-which sounds in tort and contract-makes no reference to any contractual agreement executed by the parties. Moreover, because conduct in New Jersey forms the predicate of this action, Plaintiff contends that the circumstances fail to support the transfer or dismissal of this action.

The principal issues now before the Court are the effect, if any, of Defendant's General Terms on the viability of this litigation, and whether, even if inapplicable, the circumstances of this action dictate transfer to the Northern District of Ohio. For the reasons explained below, the Court will deny Defendant's motion to transfer this action and alternatively to dismiss without prejudice to refiling upon completion of pretrial factual discovery.


A. Factual Background

The facts set forth below are those alleged in Plaintiff's Complaint, which the Court accepts as true for the purposes of the pending motion. On September 11, 2012, Berkowitz engaged Defendant in order to " troubleshoot[]" Berkowitz's glass annealing oven. (Compl. [Docket Item 1], ¶ 4.) During the course of Defendant's repair work, the glass annealing oven exploded, causing Berkowitz's facility to be " substantially damaged or destroyed by fire." (Id. at ¶ 3.) Plaintiff alleges that the explosion resulted from the " unknown" and reckless actions of Defendant's employee. Plaintiff therefore seeks monetary damages for Defendant's alleged negligence and for Defendant's purported breach of express and implied warranties. (See generally id.)

Plaintiff, Berkowitz's insurance carrier, reimbursed Berkowitz for the total loss allegedly derived from Defendant's negligence, and, accordingly, brings this action as Berkowitz's subrogee in order to recover such sums.[1]

B. Parties' Arguments

Defendant generally argues that, in filing this action, Plaintiff ignores the Agreement " [c]entral" to the services Defendant's employee provided at the time of the incident. (Def.'s Br. at 2.) Indeed, Defendant correctly notes that Plaintiff's Complaint contains no express reference to any contractual arrangement, nor provides any additional information concerning the circumstances giving rise to this litigation. (See generally Compl.) Despite these omissions, however, Defendant asserts that the General Terms mandate the transfer of this action to the Northern District of Ohio in accordance with the forum selection provision or, alternatively, require this action be dismissed as untimely under the contractual eighteen (18) month limitations period. (Id. at 3.) Indeed, Defendant asserts that " no exceptional circumstances" permit Plaintiff " to flout the parties' bargained for" forum, and further contend that the mere filing of this action contravenes the parties' contractual expression. (Id. at 7; Def.'s Reply at 5.) In seeking to transfer this action, Defendant argues that the " agreed to" forum selection provisions obviates the need to credit Plaintiff's choice of forum (which Plaintiff purportedly waived freely), and to evaluate the private interest factors typically associated with 28 U.S.C. § 1404(a). (Def.'s Br. at 4-5.) Rather, Defendant asserts that the relevant public interest factors overwhelmingly support transfer of this action to Ohio, particularly in light of the clear " dictates" of the parties' non-adhesive and bargained-for Agreement, the alleged disparity in congestion between this Court and the Northern District of Ohio, and because Ohio law purportedly governs any dispute arising out of the parties' Agreement. (Def.'s Br. at 8; Def.'s Reply at 8.) In the alternative, Defendant urges the Court to dismiss this action as untimely under the eighteen (18) month limitations period of the General Terms. In support of its position, Defendant similarly asserts that the Terms reflect an express agreement to shorten the applicable limitations period, and further argues that no policy considerations support overriding this allegedly " clear and reasonable" contractual expression. (Def.'s Br. at 7-10; Def.'s Reply at 12-14.)

Plaintiff counters in opposition that Defendant's argument in support of the transfer or dismissal of this action hinges upon a document (here, the General Terms) that Berkowitz neither received nor executed. Rather, Plaintiff acknowledges only receipt of the service " quotation[, ]" but characterizes the record as " devoid of any proofs" that Berkowitz " ever received and/or agreed to" Defendant's General Terms. (Pl.'s Opp'n at 1-2, 6.) Plaintiff therefore contends that the General Terms do not circumscribe the timeliness of, or required venue for, this litigation, particularly given the Terms' purportedly adhesive nature. (Id. at 3-5.) Rather, Plaintiff asserts that venue properly lies in New Jersey: the location of ...

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