Int'l Specialty Servs. Inc. v. Willis Ins. Servs. of Ga. Inc.

515 F.Supp.3d 374

INTERNATIONAL SPECIALTY SERVICES INC., Plaintiff,

v.WILLIS INSURANCE SERVICES OF GEORGIA INC. and Willis Insurance Brokers Co. Ltd., Defendants.

C/A No. 6:19-cv-01849-DCC

United States District Court, D. South Carolina, Greenville Division.

Signed January 25, 2021

Gregory J. English, Rita Bolt Barker, Wyche PA, Greenville, SC, for Plaintiff.

Brian Garrett Livingston, Elizabeth McMillan, McAngus Goudelock and Courie, Greenville, SC, for Defendants.

OPINION AND ORDER

Donald C. Coggins, Jr., United States District Judge This matter is before the Court on Defendant Willis Insurance Brokers Co., Ltd.'s ("Willis China") Motion to Dismiss Based on the Doctrine of Forum Non Conveniens and/or Rule 12(b)(6). ECF No. 15. Plaintiff International Specialty Services, Inc. ("ISS") filed a Response in Opposition, and Defendant Willis China filed a Reply. ECF Nos. 19, 20. By leave of the Court, Plaintiff filed a Sur-Reply and Defendant Willis China filed a further Response. ECF No. 26, 29.

BACKGROUND ¹

The facts relevant to the instant Motion are essentially undisputed. Plaintiff is a South Carolina corporation that sells various products manufactured in China. ECF No. 1 at ¶ 2. Defendants Willis China and Willis Insurance Services of Georgia, Inc. ("Willis Georgia") (collectively, "Willis Defendants") are insurance brokers organized in, respectively, Shanghai, China and the State of Georgia. Id. at ¶ 4–5. In 2014, Plaintiff requested an insurance quote for a renewal of its policy from Willis Georgia and was referred to Marco Shen at Willis China. ECF Nos. 19-1 at ¶ 7; 15-1 at 5–10. On June 9, 2014, Marco Shen sent an email to Keith Giddens, the Vice President of ISS, attaching a quote and Willis China's Terms of Business Agreement. ECF No. 15-1 at 12. Included in the body of the email was the following statement:

We operate in accordance with our Terms of Business Agreement; a copy of which [/is enclosed]. We recommend you read our Terms of Business Agreement in particular, the paragraphs headed "Disclosure of Information" and "Payment of Premium" in the section "Your responsibilities."

ECF No. 15-1 at 13.

The Cover Letter of Willis China's Terms of Business Agreement, attached to the email, provided that:

The terms apply immediately in respect of any new service provided by us on your behalf and in the case of existing business shall replace the previous terms of business from 1 Jul 2012 or the date upon which you were first sent these revised terms of business or whichever is the later. Please note that when you provide your instruction to bind coverage or pay premium in respect of your insurance payment you shall be deemed to have given acceptance of the enclosed terms of business agreement.

Id. at 17 (emphasis added). The terms included, inter alia, both a choice of law provision and a forum selection clause:

This Agreement, which sets out the terms of our relationship with you, will be governed by and construed in accordance with Chinese laws and legislations and any dispute arising under it shall be subject to the exclusive jurisdiction of the People's Courts of China.

Id. at 26. Keith Giddens responded to the email on June 17, 2014, stating: "[T]his is approved for execution. I will send to our payable department and they will remit the premium to Willis." Id. at 32–33. The policy was subsequently renewed and coverage provided through PICC Property and Casualty Company Limited ("PICC").

Plaintiff filed suit in this Court on June 28, 2019, against the Willis Defendants and PICC,² following PICC's refusal to indemnify Plaintiff for litigation costs associated with a product liability suit. ECF No. 1. Defendant Willis China now argues that venue in this Court is improper because of the forum selection clause contained in the Terms of Business Agreement. ECF No. 20. The Motion is ripe for decision.

APPLICABLE LAW

Forum Non Conveniens

"[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens. " Atl. Marine Constr. Co. v. United States Dist. Court , 571 U.S. 49, 60 (2013). This common-law doctrine "allows a court to dismiss a case when the original venue is highly inconvenient and an adequate alternative venue exists." BAE Sys. Tech. Sol. & Servs. v. Republic of Korea's Def. Acquisition Program Admin. , 884 F.3d 463, 470–71 (4th Cir. 2018). In a typical case, the defendant bears the burden of showing "that an alternative forum is available, adequate, and more convenient (in light of the public and private interests involved) than the forum selected by the plaintiff." Id. (citing DiFederico v. Marriott Int'l, Inc. , 714 F.3d 796, 800–01 (4th Cir. 2013) ). Where a valid forum selection clause exists, however, the usual presumption in favor of the plaintiff's choice of forum is reversed. The forum selection clause "is ‘given controlling weight in all but the most exceptional cases,’ and the plaintiff bears the burden of proving why it should not be enforced." Id. (quoting Atl. Marine , 571 U.S. at 63 ). In this context, the plaintiff's choice of forum "merits no weight" and arguments about the parties' private interests are not to be considered. Atl. Marine , 571 U.S. at 63–64. "When the parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation." Id. at 64. However, the court will enforce a forum selection clause "only if it would not be unreasonable to do so." Albemarle Corp. v. AstraZeneca UK Ltd. , 628 F.3d 643, 651 (4th Cir. 2010).

Rule 12(b)(6)

Rule 12(b)(6) of the Federal Rules of Civil Procedures permits the dismissal of an action if the complaint fails "to state a claim upon which relief can be granted." Such a motion tests the legal sufficiency of the complaint and "does not resolve contests surrounding the facts, the merits of the claim, or the applicability of defenses .... Our inquiry then is limited to whether the allegations constitute ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ " Republican Party of N.C. v. Martin , 980 F.2d 943, 952 (4th Cir. 1992) (internal quotation marks and citation omitted). In a Rule 12(b)(6) motion, the court is obligated "to assume the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations." E. Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship , 213 F.3d 175, 180 (4th Cir. 2000). However, while the Court must accept the facts in the light most favorable to the nonmoving party, it "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Id.

To survive a motion to dismiss, the complaint must state "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although the requirement of plausibility does not impose a probability requirement at this stage, the complaint must show more than a "sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). A complaint has "facial plausibility" where the pleading "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

DISCUSSION

Contract Formation

As an initial matter, Plaintiff argues that the entirety of the Terms of Business Agreement is invalid and unenforceable because there was no "meeting of the minds" with respect to its essential and material terms. ECF No. 19 at 3–4. The Court applies South Carolina contract law to resolve this antecedent question. See Hanna v. Plumer , 380 U.S. 460, 465 (1965) (federal courts sitting in diversity apply the substantive law of the forum state).

Under South Carolina law, "[a] valid and enforceable contract requires a meeting of the minds between the parties with regard to all essential and material terms of the agreement." Stevens & Wilkinson of S.C., Inc. v. City of Columbia , 762 S.E.2d 696, 701 (S.C. 2014) (citation omitted). This means, in practice, that "material terms cannot be left out for future agreement." Id. (citation omitted). Plaintiff does not argue that any material terms were left out of the Terms of Business Agreement. Instead, Plaintiff relies on the Declaration of Keith Giddens, its Vice President, to assert that it did not intend to be bound by the Terms of Business Agreement in any respect. See ECF No. 19-1 at 4 ¶ 9 ("My email statement ... that ‘this is approved for execution,’ referred only to the insurance coverage and amount of the premium at issue. ISS did not mean to refer to, and did not intend to be bound by, Willis-China's Terms of Business Agreement, which ISS never signed."). Plaintiff echoes this sentiment in its briefing, alleging that Defendant Willis China "overreach[ed] in attempting to secure ISS's commitment to the Terms of Business Agreement without disclosing its provisions or securing ISS's signature." ECF No. 19 at 4.

But a contract need not be signed by both parties to be valid and enforceable, and the record demonstrates unequivocally that Willis China disclosed the provisions of the Terms of Business Agreement. "A unilateral contract is formed when one party makes a promise and expressly or impliedly invites the other party to perform some act as a condition for making the promise binding on the promisor." Southern Glass & Plastics Co., Inc. v. Kemper , 399 S.C. 483, 732 S.E.2d 205, 210 (2012) (quotation and citation omitted). In this case, Defendant Willis China attached the full Terms of Business Agreement to its June 9, 2014 email;³ recommended in the body of the email that Plaintiff read the Terms of Business Agreement; and clearly stated in the Cover Letter to the Terms of Business Agreement that "when you provide your instruction to bind coverage or pay premium in respect of your insurance payment...