Selective Way Ins. Co. v. Glasstech, Inc.

191 F.Supp.3d 350

SELECTIVE WAY INSURANCE COMPANY, a/s/o J.E. Berkowitz, Plaintiff,

v.GLASSTECH, INC., John Does 1-10, and ABC Companies 1-10, Defendants.

Civil Action No. 14-3457 (JBS/KMW)

United States District Court, D. New Jersey.

Signed May 17, 2016

Steven A. Kluxen, ZIRULNIK, SHERLOCK & DEMILLE, 1395 Yardville-Hamilton Square Road, Suite 202, Hamilton, N.J. 08691, Attorney for Plaintiff.

William C. Mead, Jr., LITCHFIELD CAVO LLP, 1800 Chapel Avenue West, Suite 360, Cherry Hill, N.J. 08002, Attorney for Defendant.

OPINION

SIMANDLE, Chief Judge

I. INTRODUCTION

In this action, Plaintiff Selective Way Insurance Company asserts, as subrogee of J.E. Berkowitz (collectively, "Berkowitz" or "Plaintiff"), that Defendant Glasstech, Inc.'s (hereinafter, "Defendant" or "Glasstech") negligent "troubleshooting" of Berkowitz's glass annealing oven caused an explosion, resulting in the substantial destruction of its fabrication facility in New Jersey. In connection with these "troubleshooting" services, JEB accepted a "QUOTATION " (hereinafter, the "Quotation") that stated, in emphasized terms, that "ALL ORDERS ARE SUBJECT TO THE TERMS AND CONDITIONS STATED IN GLASSTECH'S GENERAL TERMS AND CONDITIONS OF SALE" (hereinafter, the "General Terms" and together with the Quotation, the "service agreement").¹ Those General Terms contained a forum-selection clause setting Toledo, Ohio as the place where any litigation arising from the parties' agreement must be brought. The present motions requires a determination of whether the General Terms are enforceable as part of the parties' agreement, and secondly whether the Ohio forum selection clause is enforceable and consonant with the statutory transfer provisions of 28 U.S.C. § 1404(a).

At the outset of this litigation, Defendant, in turn, moved to transfer this action to the Northern District of Ohio, pursuant to the "mandatory" forum-selection provision of the General Terms.² [See Docket Item 4.] On November 21, 2014, however, this Court found that undeveloped factual issues concerning the scope of the parties' service agreement placed the existence and application of the General Terms "in legitimate dispute." Selective Way Ins. Co. v. Glasstech, Inc., No. 14–3457, 2014 WL 6629629, at *5–*6 (D.N.J. Nov. 21, 2014) (hereinafter, the "initial transfer decision"). More specifically, the Court confronted the parties' sparsely developed and conflicting positions that the General Terms "constitute[d] a critical component of the [parties'] service agreement" (a position advanced by Defendant) and that the General Terms had no application to the parties' relationship (a position staked out by Plaintiff). Id. at *5. As a result, the Court denied Defendant's request to transfer, without prejudice to renewal (under a summary judgment standard) upon conclusion of pretrial factual discovery.³ Id. at *6, *8.

Armed with a more robust factual record, Defendant now moves once more to transfer this action to the Northern District of Ohio under the forum selection clause of the General Terms.⁴ [See Docket Item 23.] Guided by the additional discovery, Defendant takes the position that the General Terms "unquestionably" apply to this litigation, because the factual record reflects that Plaintiff accepted, wholesale, the service terms proposed by Defendant. (Def.'s Br. at 14-20; see also Def.'s Br. at 3-7.) In other words, Defendant claims that Plaintiff accepted the Quotation subject to the "plainly incorporated" and "commercially reasonable" provisions of the General Terms. (See Def.'s Reply at 3-7.) As a result, Defendant submits that this action should be transferred to the Northern District of Ohio pursuant to "the mandatory forum selection clause." (Id. at 8.)

Plaintiff, by contrast, provides little, if any, substantive response to Defendant's positions on its receipt and acceptance of the service agreement.⁵ Indeed, Plaintiff acknowledges that its Maintenance Manager, Michael Gazzara, received an email containing the Quotation and General Terms and responded in order to accept the terms provided by Defendant. (SeePl.'s Opp'n at 1-2, 4-9.) Nevertheless, Plaintiff advances the view that the factual record contains no indication that it manifested assent to the "restrictive" and "limited" forum selection and limitations provisions. (Id. at 2.) Plaintiff then puts aside any enforceable forum selection clause, and submits that this action should remain in this forum for the reasons expressed in the initial transfer decision. (Id. at 1, 7.)

In addressing these competing positions, the Court emphasizes, at the outset, that Plaintiff mounts no factual challenge (genuine or otherwise) to the fact that Defendant performed repair services in accordance with a service Quotation, nor to the express incorporation of the General Terms into the agreed-upon Quotation. Indeed, Plaintiff admits nearly each of Defendant's statements of material fact.

Against that backdrop, the pending motion presents three relatively straightforward issues. First, the Court must consider whether the undisputed factual record demonstrates that Berkowitz agreed to be bound by the General Terms (inclusive of its forum-selection provision). Second, the Court must determine the enforceability of the forum-selection clause, if any. Finally, the Court must consider whether the circumstances of this action (aided by a forum-selection clause or not) warrant the transfer of this litigation.

For the reasons that follow, Defendant's motion will be granted to the extent it seeks transfer, and this action will be transferred to the Northern District of Ohio.

II. BACKGROUND

A. Factual and Procedural Background⁶

Berkowitz has manufactured architectural glass since 1920. (See, e.g., Ex. H to Mead Cert.) In connection with that production, Berkowitz hired Glasstech in the late 1990s to install a glass tempering furnace in one of its New Jersey facilities. (See Gazzara Dep. at 8:3-23.)

In September 2012, however, Berkowitz began experiencing issues with the furnace. (See Def.'s SMF at ¶ 22; Pl.'s SMF at ¶ 22; Gazzara Dep. at 6:10-13.) As a result, the Maintenance Manager, Michael Gazzara (hereinafter, "Gazzara"), contacted Glasstech in order to troubleshoot the issue over the telephone (as he had on prior occasions). (See Def.'s SMF at ¶ 23; Pl.'s SMF at ¶ 23; Gazzara Dep. at 7:22-8:4.) When that telephonic assistance failed to resolve the issues, however, Gazzara contacted Michael Walbolt (hereinafter, "Walbolt") of Glasstech to schedule an in-person visit by a service technician (again, as had occurred previously). (See Def.'s SMF at ¶ 26; Pl.'s SMF at ¶ 26; Gazzara Dep.) Following that conversation, on September 11, 2012, Walbolt emailed Gazzara an agreement for the "emergency service trip" with two attachments, "Q0007272.pdf" and "GENERAL TERMS AND CONDITIONS OF SALE 020212.pdf," and requested that Berkowitz "provide a P.O." so that the companies could "firm up arrangements."⁷ (Ex. C to Mead Cert.; see also Ex. Ato Walbolt Cert.; Def.'s SMF at ¶ 28; Pl.'s SMF at ¶ 28.)

The Quotation, identified as Quote No. Q0007272 and attached as "Q0007272.pdf," itemized the costs and expenses for a two day service trip to Berkowitz's facility, and stated, on its face, that "UNLESS OTHERWISE SPECIFIED BELOW, ALL ORDERS ARE SUBJECT TO THE TERMS AND CONDITIONS STATED IN GLASSTECH'S GENERAL TERMS AND CONDITIONS OF SALE." (Ex. B to Walbolt Cert.; Def.'s SMF at ¶¶ 15-16; Pl.'s SMF at ¶¶ 15-16.) The General Terms attached to the email (and dated February 2, 2012),⁸ in turn, provided the following explanation concerning its scope and effect:

Except as Glasstech, Inc. ("Seller") may otherwise agree in writing, the quotation, acknowledgement, invoice or agreement (signed by Seller) to which the Glasstech General Terms and Conditions of Sale ("Terms and Conditions") is attached or refers to, together with the terms on the face of the Seller's quotation, acknowledgement, invoice or agreement (signed by Seller) shall govern and constitute the sole and complete agreement between Seller and its customer... relating to ... the provisions of services ...

(Ex. C to Walbolt Cert. at ¶ 1 (emphases added).) The General Terms then explained that the

Agreement shall be governed by and construed and interpreted in accordance with the Uniform Commercial Code as adopted by the State of Ohio, and other applicable laws of the State of Ohio without application of conflict of laws principles. Each party hereby (1) irrevocably submits to the jurisdiction of the state or federal courts located in Toledo, Ohio, U.S.A., (2) agrees that any action, suit or proceeding arising from or relating to this Agreement shall be broughtonly in such Courts, and (3) waives any objections based to personal jurisdiction, venue or forum non conveniens [, and that]

Any action against Seller based upon Seller's alleged breach of its obligations must be commenced within eighteen (18) months after Customer's receipt of the Equipment or the performance of the Services.

(Id. at ¶¶ 11, 15 (emphases added).) In other words, the General Terms circumscribed to Toledo, Ohio the fora for any litigation concerning the parties' service agreement, and limited the time period for the filing of any action.⁹ (See generally id.)

Following receipt of Walbolt's email, Gazzara "[p]robably" opened the Quotation, but "didn't think" to open the General Terms, because of the paramount "importan[ce]" of getting "the machine running." (Gazzara Dep. at 16:24-17:2, 20:22-25, 35:20-21.) Nevertheless, Gazzara understood that the attached documents constituted Glasstech's "service agreement," that his approval would amount to an acceptance of the Quotation, and that terms and conditions accompanied service quotations, as a matter of course, with outside vendors.¹⁰ (Id. at 14:21-15:7, 20:10-18, 24:20-25:4, 34:8-14, 36:2-11; see also Def.'s SMF at ¶¶ 31, 32, & 36; Pl.'s SMF at ¶¶ 31, 32, & 36.)

Having that understanding, and without reviewing the attachment...