Opinion
Case No. 05cv1923 DMS (AJB).
February 24, 2006
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FOR IMPROPER VENUE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(3) [Doc. No. 17]
This matter comes before the Court on Defendant Azimut-Benetti, S.p.A.'s ("Defendant") motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3), or in the alternative, for forum non conveniens. After careful consideration of the parties' pleadings and the relevant statutory and case law authority, the Court grants Defendant's motion to dismiss for improper venue.
I. FACTUAL AND PROCEDURAL BACKGROUND
Defendant is a foreign company that is organized under the laws of Italy, with its principal place of business in Torino, Italy. Defendant is engaged in the business of the direct sales of luxury motor yachts to dealers throughout the world, who purchase such vessels for resale to the public.
Plaintiff Waypoint Yachts ("Plaintiff") is a California corporation, with its principal place of business in San Diego, California. In 2003, Plaintiff's founder, president and chief executive officer, Mark G. Andries ("Andries") formed Waypoint Yachts for the sole purpose of becoming an exclusive dealer of Defendant's vessels in California, Arizona, Nevada, Utah, Washington and Hawaii ("the western United States").
On May 15, 2003, Plaintiff and Defendant entered into a dealership contract pursuant to which Plaintiff became the exclusive agent for the sale and servicing of Defendant's vessels in the western United States. The dealership contract was for a one-year term, subject to renewal on an annual basis.
On October 13, 2004, the parties entered into a dealership contract for a subsequent one-year term ending on October 12, 2005. The contract which the parties signed is an eleven-page document, titled on the first page, "DEALERSHIP CONTRACT." The terms governing the relationship between the parties were set forth, starting on page two, in the "PREAMBLE" and the "DEFINITIONS," followed by "ARTICLES" one through twenty-one. Article twenty-one of the contract is entitled "APPLICABLE LAW AND JURISDICTION," which provides:
This agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Italy and the parties hereby submit to the exclusive jurisdiction of the Court of Torino (Italy).
On behalf of Plaintiff, Mr. Andries signed the dealership contract. In addition, Mr. Andries initialed each page of the document in the lower right-hand corner of the contract, including page ten, under the applicable law and jurisdiction provision.
On September 9, 2005, Defendant informed Plaintiff that it would not renew its dealership agreement for the 2005-2006 year when the annual agreement expired on October 12, 2005.
On October 7, 2005, Plaintiff filed a Complaint in the United States District Court for the Southern District of California, alleging that Defendant wrongfully terminated Plaintiff's contract to sell and maintain Defendant's yachts. Plaintiff's Complaint alleges causes of action against Defendant for breach of contract, fraud and violation of California Business and Professions Code § 20025. In addition to the Complaint, Plaintiff filed a motion for a temporary restraining order and preliminary injunction to enjoin Defendant from terminating the dealership contract.
On October 12, 2005, this Court denied Plaintiff's motion for a temporary restraining order. The contract between the parties terminated that same day.
On January 10, 2006, Defendant filed this instant motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3), or in the alternative, for forum non conveniens. Thereafter, Plaintiff filed an Opposition to Defendant's motion, and Defendant filed a Reply.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(3) provides that if a party brings an action in the wrong court, a defendant can move to dismiss for improper venue. Fed.R.Civ.P. 12(b)(3). A motion to enforce a forum-selection clause is treated as a motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3). Kukje Hwajae Ins. Co., Ltd. v. M/V Hyundai Liberty, 294 F.3d 1171, 1174 (9th Cir. 2002), vacated on other grounds, 543 U.S. 985, 125 S.Ct. 494 (Mem), 160 L.Ed.2d 368 (2004).
Parties may, by contract, designate a forum in which any litigation arising under the contract will take place. See Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594-95, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). Most forum-selection clauses enjoy strong presumptions of validity and enforceability. Murphy v. Schneider National, Inc., 362 F.3d 1133, 1140 (9th Cir. 2004); Spradlin v. Lear Siegler. Management, Services Co., 926 F.2d 865, 868 (9th Cir. 1991). However, the enforceability of a forum-selection clause in international agreements is controlled by the Supreme Court's decision in M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In Bremen, the Supreme Court held that "[forum-selection] clauses are prima facie valid and should be enforced unless enforcement is shown by the resisting party to be `unreasonable' under the circumstances." Bremen, 407 U.S. at 10.
Finally, when a motion to enforce a forum-selection clause is made pursuant to Fed.R.Civ.P. 12(b)(3), the pleadings need not be accepted as true, and the court may consider facts outside of the pleadings. Murphy, 362 F.3d at 1137 (citing Richards v. Lloyd's of London, 135 F.3d 1289, 1292 (9th Cir. 1998) and Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996)). If there are contested facts bearing on the enforceability of the forum-selection clause, with respect to the non-moving party's "meaningful day in court," the court is obligated to draw all reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of the non-moving party. Murphy, 362 F.3d at 1138. If the facts asserted by the non-moving party are sufficient to preclude enforcement of a forum-selection clause, the non-moving party survives a 12(b)(3) motion. Alternatively, if material facts are in dispute, the court may hold the motion in abeyance until a pre-trial evidentiary hearing resolves disputed facts. Id. at 1139.
III. DISCUSSION
Defendant argues in its motion to dismiss that Plaintiff filed its Complaint in an improper venue. According to Defendant, the subject forum-selection clause requires Plaintiff to bring any lawsuits against it in Italy. Alternatively, Defendant argues that should this Court hold that it has jurisdiction to consider Plaintiff's claims despite the forum-selection clause, the action should be dismissed based on the doctrine of forum non conveniens.
Plaintiff raises several arguments in support of its contention that venue is proper in this Court. Plaintiff first contests the applicability of the Supreme Court's decision in Bremen to the facts of this case. Second, Plaintiff contends that even if the Court concludes that Bremen is applicable, the Bremen factors support a finding that the forum-selection clause is unreasonable, and therefore, invalid and unenforceable. Finally, Plaintiff argues that under a traditional forum non conveniens analysis, the public and private factors weigh in favor of this Court keeping jurisdiction over the case. The Court now considers the parties' arguments in turn.
A. The Applicability of Bremen to the Present Dispute
As an initial matter, the parties dispute the applicability of Bremen to the facts presently before the Court. Plaintiff advances two arguments in support of the inapplicability of Bremen: (1) the contract in Bremen involved parties of equal expertise and bargaining power; and (2) this case does not involve facts in which the Defendant is subject to litigation in several different fora. Plaintiff's arguments, however, are unavailing.
Bremen involved a suit in admiralty between a United States corporation owning a drilling rig and a German corporation owning a barge that contracted to tow the rig to Italy. The towing contract between the parties contained a forum-selection clause establishing the High Court of London as the exclusive jurisdiction for any litigation. After the drilling rig was damaged in a storm, the German corporation was instructed to tow the rig to Tampa, Florida, the nearest port of refuge. There, the United States corporation brought an admiralty suit in the United States District Court for the Middle District of Florida, and the German corporation moved to stay the district court action to proceed with its own action in the courts of England, pursuant to the forum-selection clause.
The district court held that the forum-selection clause was unenforceable and also denied the German corporation's forum non conveniens argument. Thereafter, the Court of Appeals affirmed the district court's ruling. On review, the Supreme Court evaluated the fairness of enforcing a forum-selection clause requiring an American party to litigate in a foreign forum based on the parties' contract and held that a mandatory forum-selection clause is enforceable unless the party challenging its enforcement can meet the heavy burden of showing that its enforcement would be unreasonable, unfair, or unjust. See Bremen, 407 U.S. at 15.
Notably, the Court in Bremen made no distinction between the applicability of the "unreasonableness" test for contracts that are actively negotiated or adhesive. Rather, the Court held that the non-moving party is required to meet the heavy burden of showing that its enforcement would be unreasonable irrespective of the bargaining power between the parties.
The Supreme Court clarified its position on the applicability of the Bremen standard in adhesive contracts in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991). There, the Court noted that contracts in which the parties did not have equal bargaining power and did not negotiate the terms are subject to the same standard announced in Bremen. Id. at 594-95. Accordingly, Plaintiff's argument that Bremen is inapplicable to the present case because Defendant had superior bargaining power over Plaintiff lacks merit.
Plaintiff's alternative argument that Bremen does not apply also lacks merit. Plaintiff argues Bremen is distinguishable because Defendant is not subject to litigation in a multitude of fora, as was the case in Bremen. Thus, according to Plaintiff, Defendant would have no legitimate need to select in advance a specific forum for the submission of disputes that might arise. Plaintiff's argument, however, is not supported by the facts before the Court.
Here, Defendant is engaged in the business of distributing its vessels to dealers in several locations in the United States and throughout the world. As such, like the parties seeking to enforce the forum-selection clauses in Bremen and Carnival Cruise, Defendant is subject to the possibility of litigation in numerous fora. Under such circumstances, a forum-selection clause establishing Italy as the exclusive forum for disputes arising from its dealership contracts allows the Defendant to litigate all matters in a limited forum, under a single body of law. In addition, Defendant's forum-selection clause has the "effect of dispelling any confusion about where suits arising from [Defendant's] contract[s] must be brought and defended, thus sparing litigants the time and expense of pretrial motions to determine the correct forum and conserving judicial resources that otherwise would be devoted to deciding those motions." Carnival Cruise, 499 U.S. at 594. Bremen is therefore applicable to this case.
Given Bremen's application, the next inquiry is whether the forum-selection clause is "unreasonable, unfair or unjust," as to overcome the strong presumption of the validity and enforceability of such clauses. As established in Bremen, a forum selection-clause is unreasonable if: (1) its incorporation into the contract was the result of fraud, undue influence, or overweening bargaining power; (2) the selected forum is so gravely difficult and inconvenient that the complaining party will for all practical purposes be deprived of his day in court; or (3) enforcement would contravene a strong public policy of the forum in which suit is brought. See Bremen, 407 U.S. at 12-15, 18; Argueta, 87 F.3d at 325. The Court addresses each of these factors in turn.
B. Whether the Forum-Selection Clause was Incorporated Into the Contract by Fraud, Undue Influence, or Overweening Bargaining Power
Plaintiff does not allege that the forum-selection clause was fraudulently included in the dealership agreement between the parties. Instead, Plaintiff argues the clause is unconscionable, and its enforcement would be unfair because it: (1) is unclear and "not readily understood as a classic choice of forum clause — especially by an unrepresented layperson" (Plaintiff's Opposition to Defendant's Motion to Dismiss at 12.); and (2) was "imposed and drafted by [Defendant], a party of superior bargaining strength." ( Id. at 11.)
Defendant counters that the plain language of the forum-selection clause is not ambiguous or unconscionable, and that under Ninth Circuit cases interpreting similar provisions, the language contained in the provision is sufficient to require that the forum be designated as mandatory and exclusive. In addition, Defendant argues that the forum-selection clause is not unconscionable because the contract is not one of adhesion. Specifically, Defendant argues that the contract is not procedurally or substantively unconscionable.
With respect to Plaintiff's first argument — that the forum-selection clause is ambiguous and should therefore be construed against Defendant such that the provision should not be enforced — the Court notes that the Ninth Circuit has established that "some uncertainty as to where an action may be brought does not rise to the level of a "serious inconvenience" that would invalidate an otherwise enforceable forum selection clause." Fireman's Fund Ins. Co. v. M.V. DSR Atlantic, 131 F.3d 1336, 1338 (9th Cir. 1997) (citing Carnival Cruise, 499 U.S. at 595). Nonetheless, in determining the enforceability of a forum-selection clause, the Court must determine whether the clause is "permissive" or "mandatory." American Home Assurance Co. v. TGL Container Lines, Ltd., 347 F.Supp.2d 749, 757 (N.D.Cal. 2004). A contractual forum-selection clause is presumptively enforceable if the clause specifies venue with mandatory language rather than merely designating a jurisdiction in which actions to enforce the terms of contract may be brought. Bremen, 407 U.S. at 10.
A plain reading of the provision leads this Court to conclude that the language in the subject clause is sufficient to establish Italy as the mandatory forum in which actions to enforce the terms of the contract must be brought. The forum-selection clause provides:
"This agreement and the rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of Italy and the parties hereby submit to the exclusive jurisdiction of the Court of Torino (Italy)."
( See Dealership Contract at 10) (emphasis added). The inclusion of the phrases "shall be governed by and construed in accordance with the laws of Italy," and "exclusive jurisdiction of the Court of Torino (Italy)" sufficiently indicates Defendant's desire to designate Italy as the exclusive forum in which any disputes arising under the contract may be heard.
Further, a review of Ninth Circuit cases analyzing similar provisions supports this Court's finding that the language is sufficient to confer mandatory and exclusive jurisdiction. In Fireman's Fund, the Ninth Circuit held that a provision which stated that "The contract evidenced by or contained in this Bill of Lading is governed by the law of Korea and any claim or dispute arising hereunder or in connection herewith shall be determined by the courts in Seoul and no other courts," was sufficient to require mandatory and exclusive jurisdiction in Korea. Fireman's Fund, 131 F.3d at 1340. In addition, the Ninth Circuit also considered similar language and concluded that the forum-selection clause was enforceable in Richards v. Lloyds of London, 135 F.3d 1289, 1292 (9th Cir. 1998):
The rights and obligations of the parties arising out of or relating to the Member's membership of, and/or underwriting of insurance business at, Lloyd's and any other matter referred to in this Undertaking shall be governed by and construed in accordance with the laws of England.
Each party hereto irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute and/or controversy of whatsoever nature arising out of or relating to the Member's membership of, and/or underwriting of insurance business at, Lloyd's. . . .
Accordingly, Plaintiff's argument that the forum-selection clause is ambiguous and therefore unenforceable lacks merit.
Plaintiff's alternative argument against the enforceability of the forum-selection clause is that the provision is unconscionable because it was imposed by a party of superior bargaining power. Plaintiff argues that the forum-selection clause is per se procedurally unconscionable because the provision appears in a contract of adhesion. Further, according to Plaintiff, "[b]ecause its terms clearly favor the stronger party in general, and specifically advance its agenda to stand off shore while profiting from the American market, it is also substantively unconscionable." (Plaintiff's Opposition to Defendant's Motion to Dismiss at 11.)
Defendant, however, contends that the forum-selection clause is not unconscionable because it is not part of a contract of adhesion. In addition, Defendant argues that even assuming that the contract is one of adhesion, the elements of procedural unconscionability are lacking because Plaintiff was not "surprised" by the inclusion of the clause or "oppressed" into entering into the contract. Finally, Defendant also argues that the substantive unconscionability element is lacking, and thus, the forum-selection clause should be enforced.
In addressing whether the subject forum-selection clause is unconscionable, the Court first notes that federal courts rely on state law when addressing issues of contract validity and enforceability. Ticknor v. Choice Hotels Int'l, Inc., 265 F.3d 931, 936-37 (9th Cir. 2001). The unconscionability analysis begins with an inquiry into whether the contract is one of adhesion. See Armendariz v. Foundation Health Psychcare Services, 24 Cal.4th 83, 113 (Cal. 2000). An adhesion contract is a "standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it." Id. at 113. Under the Ninth Circuit's decision in Ting v. ATT, 319 F.3d 1126, 1148-49 (9th Cir. 2003), "a contract is procedurally unconscionable if it is a contract of adhesion, i.e., a standardized contract, drafted by the party of superior bargaining strength, that relegates to the subscribing party only the opportunity to adhere to the contract or reject it." (emphasis added).
As noted, Defendants argue that the contract is not one of adhesion because "although it is larger, it did not `impose' the contract on [Plaintiff] on a `take it or leave it basis.' Instead, [Plaintiff actively solicited a dealership contract with [Defendant], actively advertised itself, represented it had sufficient financial capacity to be a high-dollar business, and freely agreed to the terms of because of its eager desire to become an Azimut Dealer." (Defendant's Reply at 5.) In essence, while Defendant concedes that the contract is a standardized contract and that the contract was drafted by a party of superior bargaining power, Defendant contends that it did not impose the terms of the contract on Plaintiff such that there was an absence of a real opportunity for negotiation between the parties.
The undisputed evidence on record supports Defendant's argument that Plaintiff had the ability to negotiate the terms of the contract. Specifically, Plaintiff's declaration notes that Mr. Andries "formed Waypoint in 2003 for the sole purpose of becoming the exclusive franchised dealer for the sale in California and the rest of the Western United States of vessels manufactured by Azimut-Benetti." (Declaration of Mr. Andries at ¶ 10.) In addition, while Mr. Andries testified that he "was not permitted to negotiate any of its terms [of the contract]" and that he was "told that [he] was being offered a one time only take it or leave it opportunity to become an Azimut Dealer," he also acknowledged that there were negotiations between the parties as to the terms of the agreement:
"At the time WAYPOINT and AZIMUT-BENETTI were negotiating their dealership agreement, there were no FERRETTI GROUP or comparable dealerships available anywhere in the United States." (Declaration of Mr. Andries at ¶ 19) (emphasis added).
" I negotiated the terms of WAYPOINT's dealership contract with [Defendant] exclusively in the English language. Some of those negotiations were conducted face to face in the United States at the Miami boat show in 2002." (Declaration of Mr. Andries at ¶ 33) (emphasis added). Accordingly, Plaintiff's testimony that it negotiated the terms of the dealership agreement leads this Court to conclude that the contract was not one of adhesion.
To complete the unconscionability analysis, the Court also must consider whether Plaintiff was "surprised" by the inclusion of the forum-selection clause in the contract itself. See A M Produce Co. v. FMC Corp., 135 Cal.App.3d 473, 486 (1982) (noting that the procedural element of unconscionability focuses on two factors: oppression and surprise). "Surprise involves the extent to which the terms of the bargain are hidden in a `prolix printed form' drafted by a party in a superior bargaining position." Crippen v. Central Valley RV Outlet, Inc., 124 Cal.App.4th 1159, 1165 (2004) (citation omitted).
Here, Defendant provides sufficient undisputed evidence to establish that Plaintiff was not surprised by the inclusion of the forum-selection clause. First, the applicable provision containing the forum-selection clause was not hidden in an long "prolix printed form." Rather, the forum-selection clause is clearly identified on page ten of an eleven-page contract and is clearly set under the heading, "APPLICABLE LAW AND JURISDICTION." Further, the entire provision appears in boldface, capital, and underlined letters, with two lines skipped between the prior section, and one line skipped underneath. Finally, Mr. Andries initialed every page of the contract, including page ten, immediately below the forum-selection clause, and signed his name on the last page. Under such circumstances, Plaintiff cannot effectively argue that it was surprised by the inclusion of the forum-selection clause when the parties entered into the dealership agreement.
To avoid enforcement of the forum-selection clause, Plaintiff must also show the provision is substantively unconscionable. No such finding is supported by the evidence here. As Carnival Cruise establishes, parties may, by contract, designate a forum in which any litigation arising under the contract will take place. Carnival Cruise, 499 U.S. 593-94. Absent a finding that the provision is so one-sided as to render the provision unreasonable, such forum-selection clauses must be enforced.
Here, the right to litigate in Italy and the prohibition against litigating in any other forum is mutual to both Plaintiff and Defendant. Accordingly, Plaintiff fails to show the forum-selection clause is substantively unconscionable.
C. Whether the Forum-Selection Clause Essentially Deprives Plaintiff of a Meaningful Day in Court
Plaintiff next argues that the forum-selection clause is unreasonable and should not be enforced because to do so would essentially deprive it of a meaningful day in court. In support of its argument, Plaintiff contends that: (1) it "simply cannot afford to litigate its claim against [Defendant] in Italy. To force it to do so would in practical effect deprive [Plaintiff] of any opportunity to assert its claims in any court at all" (Plaintiff's Opposition at 7); and (2) it would be unreasonable and unjust to insist that Plaintiff, which has no capability in the Italian language, no contact with legal counsel in Italy and absolutely no knowledge of the Italian legal system, be required to assert its claim in an Italian Court. ( Id. at 8.)
The problem with Plaintiff's arguments, however, is that under Bremen and subsequent Ninth Circuit caselaw, financial hardship and the inconvenience of litigating in a foreign forum are insufficient to render an otherwise valid forum-selection clause unenforceable. See Fireman's Fund, 131 F.3d at 1339 (noting that the cost of litigation or the fact that a foreign forum poses inconvenience does not prevent enforcement of a forum-selection clause). Further, as noted in Bremen, where the inconvenience of the forum was foreseeable at the time of contracting, then the party seeking to escape his contract must show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Bremen, 407 U.S. at 18 (emphasis added).
The evidence before the Court indicates that the inconvenience of litigating in Italy was clearly foreseeable to Plaintiff at the time he entered into the contract with Defendant in 2004. First, as Plaintiff concedes, Mr. Andries specifically formed the company for the sole purpose of becoming an exclusive franchised dealer of Defendant's vessels. As such, Plaintiff was aware well before the parties entered into any contractual agreement that it was dealing with a company whose headquarters and principal place of business were in Italy. In addition, for the reasons discussed above, any ambiguity regarding the foreseeability of the inconvenience of litigating in Italy was made clear to Plaintiff in the contract itself. Accordingly, while the Court recognizes that the financial burden and difficulties of litigating in Italy is not insignificant, those factors are insufficient to overcome Plaintiff's heavy burden of establishing that litigating in the foreign forum would be so gravely difficult that it would, for all practical purposes, deprive Plaintiff of its day in court.
D. Whether the Forum-Selection Clause Contravenes Public Policy
Finally, Plaintiff argues that to enforce the forum-selection clause would contravene California's strong public policy of protecting its citizens from the superior bargaining power of foreign manufacturers and franchisers who would burden dealers resident in California with the expense of litigating claims in a remote forum. In support of this contention, Plaintiff cites California Business and Professions Code § 20040.5, which provides that "[a] provision in a franchise agreement restricting venue to a forum outside this state is void with respect to any claim arising under or relating to a franchise agreement involving business operating within this state."
Defendant argues that § 20040.5 does not apply to the present case because the parties were not engaged in a franchisor-franchisee relationship. California Business Professions Code § 20001 defines "franchise" under California law as follows:
As used in this chapter, "franchise" means a contract or agreement, either expressed or implied, whether oral or written, between two or more persons by which:
(a) A franchisee is granted the right to engage in the business of offering, selling or distributing goods or services under a marketing plan or system prescribed in substantial part by a franchisor; and
(b) The operation of the franchisee's business pursuant to that plan or system is substantially associated with the franchisor's trademark, service mark, trade name, logotype, advertising, or other commercial symbol designating the franchisor or its affiliate; and
(c) The franchisee is required to pay, directly or indirectly, a franchise fee.
Here, while Plaintiff attempts to characterize its relationship with Defendant as a franchisor-franchisee relationship, it presents no evidence that it was a franchisee of Defendant, as defined by § 20001 of the California Professions and Business Code. Rather, the contract itself indicates that Plaintiff is a licensed dealer of Defendant's luxury motor yachts. Indeed, the contract between the parties is entitled "Dealership Contract" and all references made throughout refer to Plaintiff as a "Dealer."
In addition, Plaintiff does not submit any evidence which establishes that Defendant created and prescribed, in substantial part, a marketing plan or system that it was required to follow. Notably, while Defendant's Dealer Qualification Program and Marketing Manual establish detailed guidelines and suggestions for Plaintiff to follow, there is no evidence to support that the suggestions were mandatory and binding upon Plaintiff. In contrast, under the Marketing Manual, the language explicitly provides that the Dealer is to "formulate a Business Plan in line with his own growth programmes and market requests. . . ." ( See Marketing Manual at 8.)
Moreover, Plaintiff fails to come forth with any evidence to establish that it was required to pay, either directly or indirectly, a franchise fee. Under California Business and Professions Code § 20007, a "franchise fee" is defined as "any fee or charge that a franchisee or subfranchisor is required to pay or agrees to pay for the right to enter into a business under a franchise agreement, including, but not limited to, any payment for goods and services." Because there is no evidence to indicate that Plaintiff was required to pay fees for the right to enter into a business under a franchise agreement, Plaintiff fails to show that the relationship between the parties was that of a franchisor-franchisee. Accordingly, Plaintiff's argument that California Business and Professions Code § 20001 invalidates the forum-selection clause is without merit.
IV. CONCLUSION
For the reasons discussed above, Defendant's motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) is GRANTED. Accordingly, all pending dates in this case are vacated. The Clerk of the Court is instructed to close the case.
In light of the Court's dismissal of this action for improper venue pursuant to Fed.R.Civ.P. 12(b)(3), the Court declines to address the issues raised in Defendant's motion to dismiss for forum non conveniens, as those issues are moot.
IT IS SO ORDERED.