United States District Court, D. Maine
CINDY S. TAYMAN, in her capacity as Trustee of the Tayman Revocable Trust, et al., Plaintiffs
5 TIDES HOME INSPECTIONS, LLC, et al., Defendants
DECISION AND ORDER ON MOTION TO DISMISS
BROCK HORNBY UNITED STATES DISTRICT JUDGE.
a lawsuit against a home inspector, a home inspection
service, a real estate broker agency and two of its brokers.
The Massachusetts plaintiffs purchased a house in Raymond,
Maine which, they say, had all kinds of serious defects that
were not disclosed and that will require expenditure of well
over $100, 000. They seek damages against all the defendants.
Jurisdiction is based on diversity of citizenship.
home inspector and the home inspection service defendants
have moved to dismiss the complaint against them under
Fed.R.Civ.P. 12(b)(6) on the basis that the purchasers
entered into a contract with them that, through a forum
selection clause and a separate venue selection clause,
prevents this court from hearing the case against them.
two defendants ultimately may succeed on their argument if
the facts are as they say they are but, at this stage, the
record does not permit me to rule in their favor. I therefore
Deny the motion.
and Procedural Background
plaintiffs attach to their Complaint what purports to be a
contract for home inspection services, Exhibit D. Exhibit D
is a badly cobbled-together document. (I hope that no lawyer
is responsible for having drafted it.) The first page is
entitled “Inspection Agreement” and features the
logo of 5 Tides Home Inspections. It begins: “This is
an Agreement between you, the undersigned Client, and us, the
Inspector, pertaining to our inspection of the Property at:
79 Tarkin Hill Rd Raymond, ME. The terms below govern this
Agreement.” The “Client” obviously is the
plaintiff house purchasers. From all appearances “us,
the Inspector” is 5 Tides Home Inspections whose logo
is prominently featured at the outset of the Agreement. This
part of the document goes on to provide for fees and
inspection services. At paragraph 9 it states: “You
agree that the exclusive venue for any litigation arising out
of this Agreement shall be in the county where we have our
principal place of business.” Compl. Ex. D at p. 2 (ECF
seventeen numbered paragraphs (1 through 17), there appears
to be an additional agreement that begins with the statement:
“THIS AGREEMENT made this 18th day of May, 2018, by and
between David Setchell (‘INSPECTOR') and the
undersigned (‘CLIENT'), collectively referred to
herein as ‘the parties.' The Parties Understand and
Voluntarily Agree as follows[.]” It then provides the
same property address and provides for water testing
services. It starts the paragraph numbering sequence anew,
and goes on for 12 numbered paragraphs (1 through 12). This
sequence has another paragraph 9. This second paragraph 9
states: “The parties agree that any litigation arising
out of this Agreement shall be filed only in the Court having
jurisdiction in the County in which the INSPECTOR has its
principal place of business.”
there are both a venue selection clause and a forum selection
clause in this document.
plaintiffs' Complaint alleges that the defendant Setchell
resides in Maine, Compl. ¶ 2 (ECF No. 1), and
that 5 TIDES is a limited liability company with its
principal place of business in Maine, id. ¶ 3.
It does not allege a County for either defendant. The
Complaint also asserts that the two defendants maintain a
website at https://5tidesinspections.com.
Id. ¶ 4.
home inspection defendants filed their motion to dismiss for
failure to state a claim, asserting that the principal place
of business for both is in Kennebec County, Maine, and
therefore that this court has no jurisdiction on account of
the venue and forum selection clauses.
with a 12(b)(6) motion, a court can consider “documents
expressly incorporated into the complaint and documents the
authenticity of which is not disputed by the parties,
official public records, documents central to the
plaintiff's claim, and documents sufficiently referred to
in the complaint.” Nicholson v. Prudential Ins. Co.
of Am., 235 F.Supp.2d 22, 26 n.2 (D. Me. 2003). Exhibit
D is therefore an eligible document. The defendants argue
that because the Complaint refers to a website, I can also
refer to that website and determine that their principal
place of business is in Kennebec County. They argue:
“The website contains contact information including 5
Tides['s] address at P.O. Box 21, South Gardiner, ME
04359. South Gardiner is in Kennebec County, Maine.”
Mot. to Dismiss at p. 2-3 (ECF No. 17). But a contact post
office box address on a website is no evidence at all of
where either of the two defendants maintains a principal
place of business, which-for legal and jurisdictional
purposes-has long been defined as the entity's
“nerve center” (i.e., the location
responsible for coordinating the business). See,
e.g., Hertz. Corp. v. Friend, 599 U.S. 77, 92
(2010). Even if their contract document uses the phrase
“principal place of business” more colloquially,
a post office box contact site on a website does not qualify.
Maybe in fact the principal place of business for each is in
Kennebec County, but the current record does not permit me to
accept that assertion.
even if it is Kennebec County, that fact will not make the
forum selection clause (the second paragraph 9) applicable in
the way defendants wish. That clause provides that “any
litigation . . . shall be filed only in the Court having
jurisdiction in the County in which the INSPECTOR has its
principal place of business.” Compl. Ex. D at p. 4.
This federal court for the District of Maine has jurisdiction
in Kennebec County, Maine. This federal forum therefore
satisfies the second paragraph 9.
defendants say that Fornaro v. RMC/Resource Mg. Co.,
201 Fed.Appx. 783 (1st Cir. 2006), stands for the contrary
conclusion. Fornaro was a case where the forum
selection clause stated: “The jurisdiction of any
lawsuits related to or arising out of this contract will be
in the courts of Carroll County, New Hampshire.”
Id. at 783. The First Circuit said that
phraseology-“the courts of Carroll County, New
Hampshire”-was “at best, a strained way to
describe the federal court and one that we do not accept as a
reasonable interpretation. It is far more likely that the
parties intended the phrase ‘courts of Carroll County,
New Hampshire' to mean the courts that trace their origin
to the state, i.e., the Carroll County, New
Hampshire state courts, of which there are the Carroll County
Superior Court and two District Courts . . ...