United States District Court, D. Maine
ORDER ON MOTIONS TO DISMISS
Z. Singal United States District Judge
the Court are (i) Defendant Walker Industrial’s Motion
to Dismiss with Incorporated Memorandum of Law (ECF No. 16)
(the “Walker Motion”), (ii) Plaintiff’s
Motion to Dismiss Defendant TURCK, Inc.’s Counterclaims
with Incorporated Memorandum of Law (ECF No. 22) (the
“Zajac Motion”), and (iii) Defendant TURCK,
Inc.’s Motion to Dismiss or, in the Alternative, to
Transfer Venue with Incorporated Memorandum of Law (ECF No.
27) (the “Turck Motion”). For the reasons
explained herein, the Court GRANTS IN PART AND DENIES IN PART
the Walker Motion, DENIES the Zajac Motion, and DENIES the
Federal Rules of Civil Procedure require only that a
complaint contain “a short and plain statement of the
grounds for the court’s jurisdiction . . . a short and
plain statement of the claim showing that the pleader is
entitled to relief; and a demand for the relief
sought[.]” Fed.R.Civ.P. 8(a)(1)-(3). The Court assumes
the truth of the complaint’s well-pleaded facts and
draws all reasonable inferences in plaintiff’s favor.
Schatz v. Republican State Leadership Comm., 669
F.3d 50, 55 (1st Cir. 2012). Under Rule 12(b)(6), the Court
“may consider only facts and documents that are part of
or incorporated into the complaint.” United Auto.,
Aero., Agric. Impl. Workers of Am. Int’l Union v.
Fortuno, 633 F.3d 37, 39 (1st Cir. 2011) (internal
viable complaint need not proffer “heightened fact
pleading of specifics, ” but in order to survive a
motion to dismiss it must contain “enough facts to
state a claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). In considering a motion to dismiss, the Court should
“begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption
of truth.” Ashcroft v. Iqbal, 556 U.S. 662,
679 (2009). Plaintiff must include enough facts supporting a
claim for relief that “nudge their claims across the
line from conceivable to plausible.” Twombly,
550 U.S. at 570. “If the factual allegations in the
complaint are too meager, vague, or conclusory to remove the
possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal.” Haley v. City of
Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting SEC
v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010)); see
also Iqbal, 556 U.S. at 678 (stating that the Court need
not accept “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements”). At this point in the litigation,
“the determination of whether an issue is trialworthy
simply is not the same as the determination of whether a
plaintiff states a claim upon which relief can be
granted.” Bodman v. Me., Dept. of Health &
Human Servs., 720 F.Supp.2d 115, 121 (D. Me. 2010).
following summary of background information is drawn from the
allegations made by Plaintiff Zajac, LLC (“Zajac”
or “Plaintiff”) in its complaint, originally
filed in the Superior Court of York County, Maine (ECF No.
1-1) (the “Complaint”). The Court accepts the
allegations of Plaintiff for the purposes of its review of
the legal adequacy of the claims made in the Complaint.
a limited liability company organized under the laws of the
State of Maine, is in the business of providing installation
services for customers in certain industries. (Compl.
¶¶ 2 & 6.) Walker Industrial
(“Walker”) is a Connecticut corporation and a
regional distributor for TURCK, Inc. (“Turck”
and, together with Walker, “Defendants”), a
Minnesota corporation. (Compl. ¶¶ 3-4 & 10.) In
2014, Zajac contracted with a customer to design,
manufacture, and install skid-mounted equipment and piping in
a facility in Vermont. (Compl. ¶ 7.) The customer
required that the installed equipment include “fire
rated” electrical wiring exposed in trays in the skids,
a feature that is also known as “tray rated.”
(Compl. ¶ 8.) Zajac contacted Walker about purchasing
wire sets and cordsets for use in the skid equipment. (Compl.
¶ 10.) Walker directed Zajac to contact Turck directly.
(Compl. ¶ 11.)
about May of 2014, Zajac’s fabrication manager
exchanged emails with Chris Hawj of Turck. (Compl. ¶
12.) Zajac informed both Turck and Walker that it needed tray
rated cordsets, and the correspondence between Zajac and Hawj
reflected that Turck knew that Zajac needed tray rated
products. (Compl. ¶¶ 12 & 42.) Walker provided
Zajac with a printed Turck catalog that described a certain
model of cordset (the “Cordsets”) as “tray
rated.” (Compl. ¶ 14.) Turck’s website also
described the Cordsets as “tray rated.” (Compl.
information provided by and through Turck and Walker, Zajac
decided to purchase the Cordsets, and it placed the first of
several orders for the Cordsets through Walker, as
Turck’s regional distributor. (Compl. ¶¶ 13
& 16.) There were no terms and conditions attached to
Zajac’s purchase order, or to the shipping invoice
Zajac received from Walker. (Compl. ¶ 16.) Zajac then
proceeded to use the Cordsets in its work for a customer.
(Compl. ¶¶ 17-18.)
about March of 2015, Zajac discovered that Turck’s
website no longer described the Cordsets as “tray
rated.” (Compl. ¶ 19.) In discussions with Walker
and Turck, Zajac confirmed that the Cordsets are not tray
rated. (Id.) Despite Zajac’s demand, Turck and
Walker have not paid for the cost of replacing the Cordsets,
which Zajac estimates will amount to approximately $128, 000.
(Compl. ¶¶ 21-22.)
filed the Complaint in York County Superior Court, asserting
claims against both Defendants in six separate counts: a
claim for declaratory judgment (Count I), a claim for breach
of express warranty (Count II), a claim for breach of implied
warranty of merchantability (Count III), a claim for breach
of implied warranty of fitness for a particular purpose
(Count IV), a claim for violation of the Maine Uniform
Deceptive Trade Practices Act, 10 M.R.S.A. § 1211 et
seq. (the “MUDTPA”) (Count V), and a claim for
false advertising (Count VI). Defendant Turck filed an
answer and counterclaim in response to the filing of the
Complaint (ECF No. 15), making counterclaims against Zajac
for breach of contract (Count I) and for indemnification
Walker has filed a motion to dismiss the Complaint (ECF No.
16). Walker argues that Zajac has failed to state a claim
against Walker for which relief can be granted as to each of
the six counts of the Complaint. Plaintiff has filed a motion
to dismiss Turck’s counterclaims (ECF No. 22).
Defendant Turck has filed a motion to dismiss the Complaint
or, in the alternative, to transfer venue to the United
States District Court for the District of Minnesota (ECF No.
27), arguing that the parties are bound by a forum selection
clause providing certain federal and state courts located in
Minnesota as the exclusive forum for the present dispute. In
addition, the parties disagree on the law applicable to this
dispute. Plaintiff asserts that the laws of the State of
Maine apply, while Defendants argue that an enforceable
choice of law provision requires the application of the laws
of Minnesota. The Court considers each of these issues below.
Court will first consider the threshold venue question raised
by Turck. Concluding that, based on the present record, venue
is proper in this District, the Court denies the Turck Motion
and proceeds to the arguments that have been made on the
individual claims. In their motions, Walker and Zajac have
moved for the dismissal of each filed claim and counterclaim.
With the exception of the Walker Motion as to the dismissal
of Counts I and VI of the Complaint, which is granted, the
Walker Motion as to Zajac’s other claims, and the Zajac
Motion, are denied.
Turck’s Argument for Dismissal or Transfer Based on
makes an argument which lies at the threshold of the
Court’s analysis of the Complaint. Turck asserts that
the parties are bound by a valid and enforceable forum
selection clause providing for the federal and state courts
located in Hennepin County, Minnesota, as the exclusive forum
for disputes in connection with Zajac’s purchase of the
Cordsets. According to Turck, venue is therefore improper in
the District of Maine, and this Court should either dismiss
the Complaint or transfer venue to the District of Minnesota.
If Turck’s argument was correct, then it would not be
appropriate for this Court to rule on the arguments made in
the Walker Motion or the Zajac Motion, and the need for
further consideration of this case would be obviated.
However, Turck is mistaken. Based on the record before the
Court, the forum selection clause is not enforceable, and
venue in this Court remains proper.
motion to dismiss, the Court looks to the allegations in the
Complaint, and assumes the truth of the well-pleaded facts
while drawing all reasonable inferences that support the
plaintiff’s stated theory of liability.
Carter’s of New Bedford, Inc. v. Nike, Inc.,
790 F.3d 289, 291 (1st Cir. 2015). The Court can also
consider an underlying document or documents that are
expressly linked to the dispute in the Complaint. Beddall
v. State St. Bank & Trust Co., 137 F.3d 12, 17 (1st
Cir. 1998) (“When . . . a complaint’s factual
allegations are expressly linked to . . . a document (the
authenticity of which is not challenged), that document
effectively merges into the pleadings and the trial court can
review it in deciding a motion to dismiss under Rule
12(b)(6).”). As the allegations in this dispute arise
out of the sale of the Cordsets to Zajac, documents purported
to contain the terms and conditions of such sale, if
presented to the Court and not challenged by a party as
inauthentic, can be considered.
has alleged that the purchase order and the shipping invoice
for the Cordsets did not contain any terms or conditions, and
Turck has not argued that a forum selection clause was
included in any transaction document by which Zajac
affirmatively agreed to certain terms and conditions in
connection with its purchase of the Cordsets. Instead, Turck
argues that the forum selection clause arose out of the
Plaintiff has alleged that its review of product information
about the Cordsets on Turck’s website was one of the
sources of the mistaken assertion by Turck and/or Walker that
the Cordsets were tray rated. Turck directs the Court’s
attention to the specific allegation in the Complaint that
the affirmative representation on Turck’s website that
the Cordsets were tray rated “became part of the
bargain.” (Compl. ¶ 32.) According to Turck, when
Zajac used Turck’s website to learn about the Cordsets,
and when it allegedly relied upon the website’s
description of the Cordsets in making the decision to order
were incorporated into Zajac’s agreement to purchase
the Cordsets and became applicable to the transaction.
a party arguing that a forum selection clause is inapplicable
bears a heavy burden of proof. Carter’s of
Bedford, 790 F.3d at 292 (quoting Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 17, 92 S.Ct. 1907 (1972)).
However, the Bremen analysis applies where a party
seeks to strike a forum selection clause that, on its face,
was an express term of a contract. Here, Zajac argues that
the forum selection clause was ...