United States District Court, D. New Jersey
Colin G. Bell, Esq., HANKIN SANDMAN PALLADINO & WEINTROB, P.C., Atlantic City, N.J., Attorney for Plaintiff.
Thomas M. Reardon, III, Esq., REARDON ANDERSON LLC, Tinton Falls, N.J., Attorney for Defendants.
JEROME B. SIMANDLE, Chief District Judge.
The Defendants move for transfer of this contract case under a forum selection clause naming Orange County, Florida as the proper jurisdiction. [Docket Item 32.] Plaintiff Asphalt Paving Systems, Inc. (hereinafter, "Plaintiff") generally alleges that it contracted with Defendants Gencor Industries, Inc. (hereinafter, "Gencor"), General Combustion Corporation (hereinafter, "General Combustion"), and Equipment Services Group, Inc. (individually, "Equipment Services" and collectively, "Defendants") for the purposes of supplying, installing, and servicing various manufacturing equipment at Plaintiff's emulsion manufacturing facility in Zephyrhills, Florida. In performing under the contracts, however, Plaintiff alleges that Defendants failed to install the appropriate materials and failed to cure certain defects in breach of the parties' agreements and the express and implied warranties.
Following the initial filing of this action, the Clerk of Court entered default against Defendants for failure to plead or otherwise defend. Defendants, however, subsequently moved to set aside the default on the basis of improper service and sought, in the alternative, the dismissal of Plaintiff's Amended Complaint for insufficient service of process, forum non conveniens, and lack of personal jurisdiction. On September 30, 2014, the Court found Plaintiff's service of the Amended Complaint ineffective under Florida law. See Asphalt Paving Sys., Inc. v. General Combustion Corp., No. 13-7318, 2014 WL 4931294, at *4 (D.N.J. Sept. 30, 2014). Rather than dismiss Plaintiff's Amended Complaint, however, the Court quashed Plaintiff's service, and provided Plaintiff thirty (30) days within which to effectuate proper service. Id . The Court, accordingly, declined to address the Defendants' alternative arguments for dismissal. Id. at *4 n.5.
Defendants, successfully served with the Amended Complaint, now seek to transfer this action to the Middle District of Florida, pursuant to 28 U.S.C. § 1404(a) and the parties' purportedly mandatory forum selection clause. (See generally Defs.' Br. [Docket Item 32].) Plaintiff, however, disputes the existence of a valid and enforceable forum selection clause as to all Defendants, and argues that Defendants have failed to meet the heavy burden necessary to disturb Plaintiff's chosen forum. (See generally Pls.' Opp'n [Docket Item 34].)
The relatively straightforward issues presented by the pending motion are whether a valid and enforceable forum selection clause governs the parties' relationship, and whether, in light of a forum selection clause or not, the applicable considerations under 28 U.S.C. § 1404(a) favor the transfer of this action to the Middle District of Florida, Orlando Division.
For the reasons that follow, Defendants' motion will be granted, and the Court will transfer this action to the Middle District of Florida, Orlando Division.
A. Factual Background
In the five-count Amended Complaint,  Plaintiff generally alleges that it contracted with Defendants to supply, install, and service various tanks, pumps, heaters and related equipment and fixtures at Plaintiff's emulsion manufacturing facility in Zephyrhills, Florida. (Am. Compl. [Docket Item 11], ¶ 11.)
The supply contract, presented to "Mr. Travis Davis, Asphalt Paving Systems, 9021 Wire Road, Zephyrhills, FL 33540" by General Combustion on February 23, 2012, bears General Combustion's logo in its introductory sections, but identifies Gencor on each page adjacent to Plaintiff's acceptance. (Reardon Cert., Ex. B.) The contract then summarizes the equipment and installation to be provided by General Combustion and/or Gencor, in addition to the "Set up and Service" to be provided by Equipment Services. (Id. at 1 (setting forth a summary of items included within the contract and writing instructions for payment).) The contract also directs that payment for all of Defendants' services be remitted to Gencor, and further provides that such agreement be governed by Gencor's "Standard Terms and Conditions of Sale'" (hereinafter, the "Standard Terms"). (Am. Compl. at ¶ 12.) The Standard Terms, in turn, provide that the agreement "and all questions regarding the performance of the parties [thereunder] shall be controlled by the laws of the State of Florida, and jurisdiction of any dispute shall be in Orange County, Florida." (Reardon Cert., Ex. B at 17.)
General Combustion "substantially completed its work" in connection with the contract "on or about October 1, 2012." (Am. Compl. at ¶ 22.) Plaintiff alleges, however, that General Combustion failed to perform the work "in a workmanlike manner and in accordance with the contract specifications." (Id. at ...