United States District Court, D. New Jersey
REPORT AND RECOMMENDATION
HONORABLE JAMES B. CLARK, III UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on a motion by
Defendant GlycoBioSciences Inc. (“Defendant” or
“Glyco”) to transfer venue, or in the
alternative, to dismiss Plaintiff's Complaint [ECF No.
Plaintiff Ansell Healthcare Products LLC
(“Plaintiff”) opposes Defendant's motion [ECF
No. 27]. The Court has reviewed the parties' submissions,
and has considered the motion without oral argument pursuant
to Fed.R.Civ.P. 78(b) and L. Civ. R. 78.1(b). For the reasons
set forth below, it is respectfully recommended that
Defendant's motion to transfer venue, or in the
alternative, dismiss Plaintiff's Complaint [ECF No. 18]
matter arises from Plaintiff's allegations that Defendant
breached a Patent Purchasing Agreement (“Purchase
Agreement”) by failing to pay all amounts due and owing
thereunder. Compl. ¶ 21, ECF No. 1. Specifically,
Plaintiff alleges that Defendant owes $35, 000.00 in
remaining “Milestone Payments” as well as
additional royalty fees as set forth in the Purchase
Agreement. Id. Defendant has moved to transfer this
case to Canada, or in the alternative, to dismiss
Plaintiff's Complaint [ECF No. 18]. Plaintiff opposes
Defendant's motion [ECF No. 27].
support of its motion, Defendant claims that the parties'
Purchase Agreement contains a forum selection and choice of
law clause which prohibits Plaintiff from bringing any cause
of action relating to the parties' contract outside of
the Province of Ontario, Canada. The Purchase Agreement, in
relevant part, provides “[t]his Agreement shall be
subject to, governed by, construed and interpreted in
accordance with the laws in force in the Province of
Ontario.” ECF No. 1-1 ¶ 9.5 (the “Governing
Law” clause). Defendant contends that the Governing Law
clause of the Purchase Agreement is both a choice of law and
forum selection clause, and accordingly, asserts that this
matter should be transferred the Province of Ontario, Canada.
ECF No. 18-1 at 1. Defendant alternatively seeks to dismiss
Plaintiff's Complaint under the doctrine of forum non
conveniens. See Id. at 8.
argues that Defendant's motion is without merit and
contends that “Defendant's motion fails to provide
a legitimate reason as to why the District of New Jersey is
so unfairly inconvenient as to justify the extraordinary
remedy of dismissal.” ECF No. 27 at 4. Plaintiff
further maintains that Defendant “erroneously and
conveniently conflates a choice of law clause  with a forum
selection clause.” Id. Plaintiff finally
asserts that because Defendant fails to establish that the
Province of Ontario, Canada would provide an adequate forum,
it cannot overcome Plaintiff's choice of forum within the
District of New Jersey. Id.
Defendant's Motion to Transfer
to 28 U.S.C. § 1404(a), a district court may transfer an
action to any other district “where it might have been
brought” so long as the transfer is “[f]or the
convenience of parties and witnesses” and “in the
interest of justice.” Federal law governs the
determination of whether to transfer venue pursuant to §
1404(a), as the issue is procedural rather than substantive.
See Jumara v. State Farm Ins. Co., 55 F.3d 873, 877
(3d Cir. 1995).
in a case not involving a forum selection clause, a court
evaluates a § 1404(a) motion using such factors as the
convenience of the parties and the relevant public interests.
Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist.
Tex., 134 S.Ct. 568, 581 (2013). “The calculus
changes, however, when the parties' contract contains a
valid forum-selection clause, which 'represents the
parties' agreement as to the most proper
forum.'” Id. (quoting Stewart Org.,
Inc. v. Ricoh Corp., 487 U.S. 22 (1988)). Because forum
selection clauses are “bargained for by the parties . .
. a valid forum selection clause [should be] given
controlling weight in all but the most exceptional
cases.” Id. (internal quotation marks
conduct a two-part analysis in determining whether to enforce
a forum selection clause. First, a district court must
determine whether the forum selection clause is valid and
enforceable. Atl. Marine, 134 S.Ct. at 581. Forum
selection clauses are “prima facie valid and should be
enforced unless enforcement is shown by the resisting party
to be 'unreasonable' under the circumstances, ”
for example, those that are undermined by “fraud, undue
influence, or overweening bargaining power.” Foster
v. Chesapeake Ins. Co., 933 F.2d 1207, 1219 (3d Cir.
1991) (quoting M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 12 (1972)).
courts must consider whether, pursuant to § 1404(a),
“extraordinary circumstances” would hinder the
enforcement of the forum-selection clause. Atl.
Marine, 134 S.Ct. at 581. In considering whether
extraordinary circumstances are present to avoid enforcement
of a valid forum selection clause, a court may consider
“arguments about public-interest factors only, ”
including “the administrative difficulties flowing from
court congestion; the local interest in having localized
controversies decided at home; [and] the interest in having
the trial of a diversity case in a forum that is at home with
the law.” Id. at 581-82 n.6 (quoting Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981)).
“The party defying the forum selection clause . . .
bears the burden of establishing that transfer to the forum
for which the parties bargained is unwarranted, ” and
must prove that public interest factors overwhelmingly
disfavor transfer. Id. at 581.
threshold matter, the Court finds that there is no forum
selection clause in the parties' Purchase Agreement.
Defendant contends that “[t]he operative contract
broadly provides for operation of foreign law.” ECF No.
18-1 at 1. To support its argument, Defendant relies on the
Governing Law clause of the Purchase Agreement, which
provides “[t]his agreement shall be subject to,
governed by, construed and interpreted in accordance with the
laws in force in the Province of Ontario.” See
ECF No. 1-1 ¶ 9.5. Contrary to Defendant's
assertion, the Governing Law clause does not prescribe a
forum, nor does it dictate jurisdiction or venue in Canada.
Rather, it appears that the Governing Law clause is a choice
of law provision that governs the interpretation of the
parties' Purchase Agreement. Because the Governing Law
clause does not prescribe a forum for an action, it does not
constitute a forum selection provision.
the Court assumed for the purposes of the instant motion that
the Governing Law provision is a valid forum selection
clause, it is neither dispositive nor determinative of the
proper forum. See Jumara, 55 F.2d at 880. That is
particularly so in the instant matter because Defendant has
not cited any authority upon which this Court may rely in
order to transfer this matter to the Province of Ontario,
Canada. Section 1404(a) only authorizes the transfer of a
civil action to another district or division of a United
States District Court. Defendant cites no authority to
support a transfer to Canada and relies solely on the
non-existent forum selection clause as a basis for transfer.
Accordingly, because the Purchase Agreement does not contain
a forum selection clause and because section 1404(a) does not