Datres v. Winfree

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SUSANNA DATRES, Plaintiff, v. ARISKNIGHT WINFREE, et al., Defendants.

No. 1:23-cv-519

United States District Court, W.D. Michigan, Southern Division

August 23, 2024

OPINION

HALA Y. JARBOU, CHIEF UNITED STATES DISTRICT JUDGE

On April 24, 2024, the Court issued an order granting in part and denying in part Plaintiff Susanna Datres's motion to amend the complaint (ECF No. 101). In that order, the Court denied a motion to dismiss by Defendants Multikultur E.K (“Multikultur”) and Rafael Bujara (collectively “Defendants” for the purpose of this motion) that it had previously stayed pending resolution of Datres's motion to amend. Defendants' motion to dismiss included among other things, a request to dismiss under the doctrine of forum non conveniens.

Before the Court is Defendants' motion to reconsider the Court's denial of their motion to dismiss under forum non conveniens (ECF No. 109). Defendants argue that the Court inappropriately confined its analysis to the pleadings as if the motion were solely a Rule 12(b)(6) motion. On May 22, 2024, the Court agreed to more fully consider Defendants' forum non conveniens arguments and to accept further evidence from both parties (ECF No. 111). It ordered Datres to respond to the merits of Defendants' argument, rather than to apply standards applicable to a motion to reconsider. All parties have now submitted their briefs and additional evidence.

As discussed in the Court's April 24, 2024 opinion jurisdiction is proper over both the case and Defendants. (4/24/2024 Op. 6-12, ECF No. 100.) Datres's complaint includes a federal question, and the Court can exercise its supplemental jurisdiction over the remaining claims. Also, Defendants have sufficient minimum contacts with the forum state to be subject to personal jurisdiction.

I. BACKGROUND

The background of this case is discussed at length in the Court's April 24, 2024 opinion addressing Datres's motion to amend the complaint. To summarize, Datres alleges that she was lured to Michigan and then sexually assaulted by Defendant Arisknight Winfree, who was aided by Defendant Paul Heiselman. Datres, an Italian citizen, claims she met Winfree, a Michigan citizen, through the online au pair matching service, www.aupair.com (“aupair.com” or “the Website”). (2d Am. Compl. ¶¶ 2, 7, 8, 11, ECF No. 104.) The Website is owned and operated in some combination by Defendants-both German citizens-and Agent Au Pair Inc. (Id. ¶¶ 3, 1718.)

Datres's claims against Defendants sound in tort-she claims negligence, gross negligence, and various forms of product liability. (Id. ¶¶ 167-210.) Defendants move to dismiss under the doctrine of forum non conveniens, arguing that their relationship with Datres is governed by terms of service (“TOS”) that include a mandatory forum selection clause establishing exclusive jurisdiction in Cologne, Germany.

Section 8 of the TOS is titled “Deactivation, termination, or cancellation of use.” (TOS § 8, ECF No. 58-2.) The combined choice of law and forum selection clause on which Defendants rely states: “The laws applicable are the laws of the Federal Republic of Germany and the applicable European Union Laws. The Court of jurisdiction is Cologne.” (Id. § 8.9.)

Sections 8.6, 8.8, and 8.10 are also relevant. Section 8.6 provides that

In case of any breach of the Terms and Conditions . . . or in case of any breach of rights, laws, or third party's rights enforceable in the Federal Republic of Germany, AuPair.com has the right to block the user at any time and without notice . . . and any payment previously made will be retained by AuPair.com as a conventional penalty for breach of contract.

(Id. ¶ 8.6.) Section 8.8 specifies that “AuPair.com has the right to change the Terms and Conditions at any time and will inform the users through email.” (Id. ¶ 8.8.) And section 8.10 contains a savings clause: “If any provision of the contract is entirely or partially invalid, or should the contract contain a loophole, the validity of the remaining provisions or the remaining valid parts of the provisions are to be considered valid.” (Id. ¶ 8.10.)

II. LEGAL STANDARD

On a motion for reconsideration, “[t]he movant shall not only demonstrate a palpable defect by which the court and parties have been misled, but also show that a different disposition of the case must result from a correction thereof.” W.D. Mich. LCivR 7.4(a).

III. ANALYSIS

The Court agrees with Defendants that it should more fully analyze the motion to dismiss under forum non conveniens and that it should not confine its analysis to the pleadings. Thus, the only question is whether Defendants can show that such analysis results in a different disposition.

The Court faces the threshold question of which forum non conveniens framework to apply-the traditional analysis or Atlantic Marine's modified analysis? In the traditional analysis, a court evaluates both public and private interests to determine “whether, on balance, a transfer [or dismissal in favor of a foreign forum] would serve ‘the convenience of the parties and witnesses' and otherwise promote ‘the interest of justice.'” Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 62-63 (2013) (quoting 28 U.S.C. § 1404(a)) (alteration added to clarify its applicability to analyses involving foreign forums, see id. at 60-61). The presence of a forum selection clause, however, changes this analysis. A forum selection clause specifying a foreign forum precipitates two analytical adjustments: first, “the plaintiff's choice of forum merits no weight”; second, a court “should not consider arguments about the parties' private interests[.]” Id. at 63-65. Ultimately, “[t]he onus falls on the plaintiff to show that the public-interest factors defeat dismissal, and they rarely will.” Lakeside Surfaces, Inc. v. Cambria Co., 16 F4th 209, 215 (6th Cir. 2021).

To determine whether Atlantic Marine applies, the Court must first determine “whether a forum-selection clause is applicable to the claims at issue, mandatory, valid, and enforceable.” Id. at 215 (6th Cir. 2021) (citing Wong v. PartyGaming Ltd., 589 F.3d 821, 830, 833 (6th Cir. 2009)). If the forum selection clause meets each criterion, “Atlantic Marine's modified forum-non-conveniens analysis applies[.]” Id. at 216.

A. The Forum Selection Clause

As an initial matter, Datres argues that the Court should apply federal common law to interpret the forum selection clause at issue. Although Defendants do not challenge Datres on this point, she appears to be incorrect. Until recently, the Sixth Circuit did interpret forum selection clauses according to federal common law. See Wong, 589 F.3d at 828 (holding that the enforceability of a forum selection clause is governed by federal law). However, it recently clarified that a federal court sitting in diversity “must use the Erie approach to contract interpretation to determine the [forum selection] clause's applicability under the appropriate law.” Firexo, Inc. v. Firexo Grp Ltd., 99 F.4th 304, 326 (6th Cir. 2024). Here, Datres asserts state law claims against Defendants, and “[a] federal court exercising supplemental jurisdiction over state law claims is bound to apply the law of the forum state to the same extent as if it were exercising its diversity jurisdiction.” German Free State of Bavaria v. Toyobo Co., 480 F.Supp.3d 948, 955 (W.D. Mich. 2007) (collecting cases). Accordingly, Michigan law appears to govern.

Regardless, the parties do not identify any differences that would arise from the choice between federal or Michigan law, nor can the Court discern any such differences. Federal common law requires forum selection clauses to be interpreted by reference to ordinary contract principles. In re Delta Am. Re Ins. Co., 900 F.2d 890, 892-93 (6th Cir. 1990). Courts in Michigan also apply “ordinary contract principles,” including the need to “first look to a contract's plain language.” Singer v. Am. States Ins., 631 N.W.2d 34, 40 n.8 (Mich. Ct. App. 2001). If the plain language is clear, “there is only one meaning the parties could reasonably expect to apply.” Id. If the language is ambiguous, “longstanding principles of contract law require that the ambiguous provision be construed against the drafter.” Id. Whether the Court applies federal common law or Michigan law, its analysis is based on ordinary contract principles.

The parties focus much of their efforts on the validity and enforceability of the forum selection clause, but the Court finds the dispositive questions to be whether the clause is applicable to the claims at issue and whether it is mandatory. These two questions can be distilled into one- did the parties agree ex ante to litigate Datres's negligence and product liability claims exclusively in Cologne, Germany? The Court concludes that they did not.

First, the plain language of the clause neither clearly applies to Datres's claims nor clearly fixes an exclusive jurisdiction. Again, the clause states in full, “The laws applicable are the laws of the Federal Republic of Germany and the applicable European Union Laws. The Court of jurisdiction is Cologne.” (TOS § 8.9.) The clause indicates what law to apply, but it fails to specify the object of that law. In other words, what do the German and European Laws apply to?

Defendants point to Wieland Copper Products, LLC v. Actian Corp., No. 3:21-cv-755-CHB, 2022 WL 18638816 (W.D. Ky. May 4, 2022), to argue that when a claim “arises under” a contract, a forum selection clause within that contract covers the claim in question. But this argument merely begs the question. The Court in Wieland grappled with whether the plaintiff's copyright claims “arose under” a licensing agreement which contained a forum...