United States District Court, W.D. North Carolina, Statesville Division
MEMORANDUM AND ORDER
RICHARD L. VOORHEES, District Judge.
THIS MATTER is before the Court upon the Defendant's motion to dismiss pursuant to Rule 12(b)(3) and alternative motion for transfer of venue, filed October 6, 2014. (Doc. 5).
Under Rule 12(b)(3), the Court views the facts in the light most favorable to the Plaintiff. See Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138-39 (9th Cir. 2003) . It is appropriate for the Court to consider matters outside the pleadings ( e.g., affidavits, declarations, etc.) since Defendant does not move for dismissal pursuant to rule 12(b)(6) or 12(c). See FED. R. CIV. P. 12(d).
I. Nature Of Case
On April 12, 2011, Plaintiff Queen City Pastry, LLC (Queen City), a "commercial baking enterprise that bakes high quality cakes, pastries and other desert items" entered into a written commercial sales contract ("Agreement") with Defendant Bakery Technology Enterprises, LLC ("Bakery Technology"), pursuant to which Bakery Technology was to provide Queen City with an "automated cake line for high quality specialty cake baking." (Compl.).
Bakery Technology is a company that custom builds commercial baking equipment. Bakery Technology "is a single-member limited liability company formed in New Mexico; registered to do business in Tennessee; and with its principal and only location in Columbia Tennessee." (Doc. 6).
Queen City and Bakery Technology entered into the Agreement on June 8, 2011. Prior to the Agreement, agents of Bakery Technology went to Queen City's baking facility in Mooresville, North Carolina to inspect and assess Queen City's operations and discuss Queen City's desire to upgrade its baking equipment in order to increase the efficiency and productivity of its baking operations. (Doc. 11). Following negotiations and discussion between Anwar Husein ("Husein"), a member-manager of Queen City, and Dino Roberts ("Roberts"), Vice President of Bakery Technology, Roberts provided Husein with the Proposal Quotation for Automated Cake Line ("Proposal Quotation"). (Doc. 6 / Exh. A - Proposal). On January 6, 2011, Husein informed Roberts that he needed a more detailed agreement in order to secure financing for the purchase of the equipment. (Exh. B - Christopher Roberts' Aff., 1). To provide such detail, Roberts provided Husein with the General Terms and Conditions ("Terms") along with the Proposal Quotation. (Doc. 6 / Exh. B - Christopher Roberts' Aff., 5). The Proposal Quotation, the Terms, and a number of drawings of the equipment for which the parties contracted were submitted to Husein as the Proposal. (Doc. 6 / Exh. B - Christopher Roberts' Aff., 3). Husein eventually signed the April 12, 2011 version of the Proposal on June 8, 2011.
The Terms included the following language with regard to choice of law and forum selection:
4. The rights and liability of the parties with respect to any transaction covered by these General Terms and Conditions shall be governed by the laws of the State of Tennessee and United States as applicable.
5. The parties agree that exclusive jurisdiction and venue for a lawsuit shall be in the Maury County Circuit Court and in no other place. BUYER hereby specifically consents to jurisdiction of such Court.
The Terms document was included in each revised Proposal thereafter, including the Proposal dated April 12, 2011. According to Roberts, the entire compilation of documents, including the Proposal Quotations and the Terms, ultimately became the Agreement. (Christopher Roberts' Aff., 2).
The Proposed Agreement was sent as one document in one electronic file to Husein through email, and as one complete hard copy document through FedEx. (Doc. 15). Additionally, the pages of the Agreement are consecutively paginated and contain the same header ("PROPOSAL #2011-03-003"), the same Bakery Technology letterhead, and the same footer providing the same contact information for Bakery Technology. Id.
However, the Proposed Agreement contained separate signature lines following the Proposal Quotation and the Terms. (Doc. 11). On June 8, 2011, Husein signed page seven of the version of the Proposed Agreement sent to him in April 2011. The signature line read: "Accepted this ____ day of April, 2011." (Doc. 11). Husein drew a line through the word "April" and wrote "June" and the day ("8") in his own handwriting and subsequently returned the signature page (as opposed to the entire document) to Roberts. The parties do not explain why there was nearly a two month delay in execution of the Proposed Agreement. Husein never signed nor returned the signature page located on page fifteen of the Proposed Agreement following the Terms. (Doc. 11). Husein made no mention or objection regarding the Terms to Roberts. (Doc 15).
After Bakery Technology began delivering equipment to Queen City's facility, Queen City alleged the oven that Bakery Technology specified, sold, and delivered was not designed for baking cakes, but rather for baking cookies and crackers. (Doc. 11). Queen City then filed suit in Iredell County Superior Court on July 30, 2014 alleging: breach of ...