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LLC v. Breakwater Equity Partners, LLC

United States District Court, D. Nevada

February 17, 2017

NNN 2716 NORTH TENAYA 24, LLC, Plaintiff(s),
v.
BREAKWATER EQUITY PARTNERS, LLC, et al., Defendant(s).

          ORDER

         Presently before the court is defendants' motion, made pursuant to 28 U.S.C. § 1404(a), to transfer venue of the case to the United States District Court, Southern District of California, San Diego Division. (ECF No. 5). Defendants further request that the court, should it deny that relief, dismiss the case for lack of personal jurisdiction or because venue is improper. (Id.); see also Fed. R. Civ. P. 12(b)(2), (3).

         I. Introduction

         On June 2, 2016, plaintiff filed its complaint in Nevada state court, alleging seven causes of action against defendants in relation to an alleged agreement to buy plaintiff's interest in the 2716 North Tenaya Way, Las Vegas, Nevada property. (ECF No. 1-1).

         On July 1, 2016, defendants Richard Pinto and Randall Ghezzi filed a notice of removal in this court. (ECF No. 1). On July 14, 2016, all defendants filed the instant motion. (ECF No. 5). Plaintiff filed a response (ECF No. 15), and defendants filed a reply (ECF No. 21).

         II. Legal Standard

         Forum selection clauses in contracts are “presumptively valid; the party seeking to avoid a forum selection clause bears a ‘heavy burden' to establish a ground upon which [the court] will conclude the clause is unenforceable.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1083 (9th Cir. 2009) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17 (1972)). A forum-selection clause is unenforceable “if enforcement would contravene a strong public policy of the forum in which suit is brought, whether declared by statute or by judicial decision.” M/S Bremen, 407 U.S. at 15.

         “Because a valid forum selection clause is bargained for by the parties and embodies their expectations as to where disputes will be resolved, it should be ‘given controlling weight in all but the most exceptional cases.'” In re Orange, S.A., 818 F.3d 956, 961 (9th Cir. 2016) (quoting Atl. Marine Constr. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013)).

         Title 28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.”

         A valid forum selection clause changes a district court's § 1404(a) analysis in three ways:

         (1) “the plaintiff's choice of forum merits no weight” and “the [clause-defying] plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted”;

         (2) a district court “should not consider arguments about the parties' private interests”; and (3) “when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry . . . the original venue's choice-of-law rules . . . .” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 581-82 (2013).

         III. Transfer of Venue

         a. Which contract(s) apply

         Defendants argue that this court should transfer venue under the authority of 28 U.S.C. § 1404 to give effect to venue-selection contract clauses in two of the allegedly underlying contracts ...


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